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Right to Counsel – Revocation

State ex rel. James A. Mentek, Jr., v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746, reversed on other grounds, State ex rel. James A. Mentek, Jr. v. Schwarz, 2001 WI 32

Issue: Whether appointed counsel’s failure to exhaust administrative appeals, which resulted in waiver of the right of judicial review of a revocation, can be challenged as ineffective assistance of counsel.

Holding:

¶11            Mentek contends that his due process right to effective assistance of counsel was violated because the public defender’s failure to pursue an administrative appeal precluded him from seeking judicial review through a petition for writ of certiorari.  We conclude that Mentek’s contention must fail because Wisconsin and federal constitutional law do not recognize a right to appointed counsel, nor by extension a right to effective assistance of counsel, on an administrative appeal of a probation revocation decision.

However, on review, the supreme court holds that exhaustion was not in fact required, and declines to “address the issue of right to assistance of counsel.” ¶1 n. 2. The court of appeals’ right-to-counsel discussion is therefore probably dicta.

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